5.  The applicant was born in 1970 and lives in Rīga.
6.  The facts of the case, as submitted by the parties, may be summarised as follows.
7.  In July 2003 the applicant was convicted of unauthorised acquisition and storage of narcotic substances. According to the criminal case file he had acquired and stored for personal use nine packages of a narcotic substance which contained 0.5108 grams of methamphetamine. The applicant pleaded guilty. He was given a suspended prison sentence. Before 2003 he had been convicted four times of theft.
8.  At the Government Agent’s request the State police furnished the following information on 5 October 2011:
“...since 2002 the Anti-Drugs Office [Narkotiku apkarošanas birojs – ONAP] had information to the effect that [the applicant] had been involved in the trafficking of narcotic substances. [The applicant] has six previous convictions; before [the arrest] he was convicted on 18 July 2003 of unauthorised acquisition, storage and transfer of narcotic substances with intent to sell...
In February 2004 the Anti-Drugs Office received new unofficial information in connection with the applicant’s drug-trafficking activities. [The Office] therefore commenced undercover investigation by carrying out a preliminary inquiry (izziņa), as a result of which on 24 February 2004 the [investigators] opened Case No. 7004204 in order to verify the operational information (operatīvās pārbaudes lieta). Information concerning the applicant was entered in the operational records (operatīvā uzskaite). Within the framework of the above proceedings [the investigators] collected information from various sources and carried out several operational investigative measures, including operational inquiry (izzināšana) phone tapping, which was authorised by the Supreme Court.
The information acquired during the verification process confirmed that the applicant was involved in drug trafficking. Accordingly, operational case (operatīvās izstrādes lieta) No. 7019304 was opened on 27 October 2004. Various operational measures were carried out within the [above case], including operational surveillance (operatīvā novērošana), operational interception of telephone conversations (operatīva sarunu noklausīšanās) and others.
Three undercover operations conducted in the context of the operational case were used as evidence of [the applicant’s] guilt, in the criminal proceedings ...which were instituted on 1 December 2004. [Their] aim was to create a situation in which the applicant would have an opportunity to either procure narcotics or refuse to do so, in order to determine how he would behave.
As a result it was proved that [the applicant] procures narcotic substances in large quantities.
...”
9.  According to the information provided by the Government, on 2, 11 and 30 November 2004, at the request of the Anti-Drugs Office, a specially authorised prosecutor from the Office of the Prosecutor General (Ģenerālprokuratūras īpaši pilnvarots prokurors) authorised the carrying-out of investigative tests (operatīvais eksperiments) in which an undercover police agent, I., was supposed to make a “test” purchase of amphetamine from the applicant. The authorisation was granted in accordance with section 15(3) of the Law on Operational Activities (Operatīvās darbības likums, hereafter “the LOA”) (see the relevant domestic law part below).
10.  According to the statements of the undercover police agent I. and the reports of the official of the Anti-Drugs Office, the investigative tests were carried out in the following manner. On 3 November 2004 I. called the applicant and asked to meet him. The applicant replied that he was busy. Later the applicant called back and they arranged a meeting. When they met, I. gave the applicant 500 Latvian lati (LVL) (approximately 700 euros (EUR)) in marked banknotes. According to I.’s statement, they did not enter into a conversation. The applicant said that he would call back. Later the same day I. called the applicant, who told him that everything would be fine. I. again called the applicant, who told him that the deal had fallen through and that they had to meet at a petrol station. At the petrol station I. called the applicant, who gave him instructions where to find the “goods”, which consisted of about 100 grams of amphetamine. Their conversations were recorded.
11.  According to I.’s statements, he also arranged a meeting with the applicant on 8 November 2004 in a supermarket in order to establish contact and gain the applicant’s trust. The applicant asked I. if everything had gone well and I. replied that everyone was satisfied, meaning that he had delivered the drugs to his partners. Then I. asked if there was any possibility of purchasing larger quantities of amphetamine. The applicant replied that this was not possible, but then added that he had 300 grams of amphetamine which he could sell. I. then asked about those 300 grams of amphetamine and the applicant replied that he could sell them the same day. I. told him that he could not make it that day, to which the applicant said “tomorrow then”, and they agreed to call each other. Later on I. asked the applicant about his occupation, to which the latter replied that it was his “only bread”, meaning drug trafficking. These statements could not be heard on the recordings because the applicant spoke in a low voice.
12.  On 25 November 2004 I. called the applicant and asked him to procure the same type and amount of drugs as before. They met at a petrol station and I. gave him LVL 500 (approximately EUR 700). The applicant took the money. Later he asked I. to come to a restaurant where the applicant was waiting for a supplier. On the same day the applicant met I. in a restaurant and delivered a package of about 100 grams of amphetamine by putting them under a chair cover.
13.  On 1 December 2004 I. called the applicant and asked to meet him. During the meeting I. offered to purchase 400 grams of the same type of drugs for LVL 2,000 (approximately EUR 2,800). The applicant told him that he was not sure whether he could supply it. I. said he wanted to pay in two instalments, and gave the applicant half the agreed sum. I. asked about a discount and the applicant lowered the price by LVL 80. The next day the applicant complained to I. that the money was marked. Afterwards, all attempts to contact the applicant were unsuccessful.
14.  On 1 December 2004 the Anti-Drugs Office initiated criminal proceedings against the applicant on charges of aggravated unauthorised acquisition and possession of narcotic substances with intent to sell.
15.  On 6 December 2004 the applicant was arrested by the police. He refused to give any statements.
16.  On 7 December 2004 the Rīga City Centre District Court authorised a search of the applicant’s home, where the police officers seized a weighing scale, some money and a SIM card for a mobile phone. The results of a forensic chemical examination revealed traces of unauthorised psychotropic substances on the scale.
17.  On 9 December 2004 a judge of the same court remanded the applicant in custody. The judge noted that the file did not contain, inter alia, the authorisation from a specialised prosecutor of the Office of the Prosecutor General to carry out the undercover operation. The court extended the applicant’s detention on several occasions.
18.  In response to a request by the Specialised Prosecutor’s Office for Organised Crime and Other Offences, the Office of the Prosecutor General stated that the undercover operations in respect of the applicant had been authorised by the prosecutor on 2, 11 and 30 November 2004. The relevant decisions had not been added to the criminal case file since they were classified in accordance with the Law on State Secret.
19.  On 29 December 2004 the criminal case was sent to the prosecutor’s office and on 4 January 2005 the applicant was charged with unauthorised acquisition and possession of narcotic substances with intent to sell. On 6 May 2005 the applicant was presented with the bill of indictment, which referred to the undercover operations of 3 and 25 November 2004.
20.  On 23 May 2005 the Rīga Regional Court decided to commit the applicant for trial.
21.  On 21 October 2005 the Rīga Regional Court convicted the applicant of aggravated unauthorised acquisition and possession of narcotic substances with intent to sell and sentenced him to ten years’ imprisonment. Police officer I. did not attend the hearing and his statements given during the pre-trial proceedings were read out. The court heard evidence from a police officer, T., who in the course of the undercover operation had carried out surveillance and tracking of the applicant. When questioned at the hearing, officer T. stated that during the period in question the applicant had tried to avoid being tracked and had met with suspicious individuals who might have been involved in drug trafficking. The Court also questioned V., who stated that the applicant had brought the marked banknotes to the currency exchange office at which she worked, to have them checked to see if they were forged.
22.  The court relied on: the written statements provided by the police officers on the conduct of the investigative tests carried out on 3 and 25 November and from 1 to 6 December 2004; information about the telephone conversations between police officer I. and the applicant; an inspection report on the marked banknotes; an inspection report on the recording of the conversations between the applicant and officer I.; a forensic chemical report according to which the items seized at the applicant’s apartment bore traces of amphetamine and cocaine; a medical examination report according to which no presence of psychotropic substances had been found in his body but traces of marihuana had been found on his hands; and a forensic chemical report on the narcotic substances acquired during the undercover operation. Items seized at the applicant’s apartment (see paragraph 16 above), together with various data storage devices (a SIM card, a CD and an audio tape), were admitted as physical evidence in the criminal proceedings.
23.  On appeal, the applicant requested witness I.’s attendance at the hearing but during the appeal hearing withdrew his request. On 15 September 2006 the Rīga Regional Court dismissed the appeal. It dismissed the incitement plea, finding that it was merely a defence strategy used in an attempt to mitigate the charges.
24.  In an appeal on points of law the applicant alleged that police officer I. had incited him to commit the offence.
25.  Following a request from the Senate of the Supreme Court to furnish observations, the Office of the Prosecutor General on 1 March 2007 submitted the following arguments in support of the dismissal of the applicant’s incitement plea:
“...Section 15(3) of the LOA authorises ... the carrying-out of undercover operations the aim of which is to determine the behaviour of a person ... in a situation which is liable to result in (izraisa) criminal or otherwise unlawful activities. Section 22 of the LOA provides that the precondition for instigating operational proceedings (izstrāde) is ... information ... which provides sufficient basis to suspect [specific] individuals of committing or preparing to commit an offence. Based on the above provisions [and] after having received authorisation from the prosecutor, the investigators are authorised to create a situation which is conducive to (veicina) the disclosure of [an individual’s] criminal intent, but in which [the individual] remains free to choose whether or not to carry out the criminal activities. ... The applicant did not become involved in the trafficking of narcotic substances as a result of the undercover operation; on the contrary, the criminal activities commenced by the applicant [had been] interrupted.”
26.  The Senate of the Supreme Court dismissed the appeal. It noted that the pre-trial investigation in the criminal case had been conducted before the Law of Criminal Procedure entered into force and that the former Code of Criminal Procedure did not regulate special investigative activities. With regard to the incitement plea, the Senate found as follows:
“... It is clear from the materials of the case that on 2, 11 and 30 November 2004 a prosecutor from the Office of the Prosecutor General approved the decision of the Anti-Drugs Office to conduct undercover operations in relation to [the applicant] in order to record [the latter’s] behaviour when [the investigator] asked [him] to supply him with narcotic substances against payment.
... there is no evidence in support of the allegations that the police officer incited the applicant to commit a criminal offence; neither did [the officer] apply methods aimed at overcoming the applicant’s doubts or his resistance to committing a crime.
The Court of Cassation concludes that, in accordance with the Law on Operational Activities, the aim of an investigative test is to record a person’s behaviour in a situation in which he or she is liable to commit criminal or other unlawful acts.
It was established that the police officers had sufficient information to suspect [the applicant] of unlawful activities involving narcotic substances...”